All right, y'all, welcome back to the show.
It's Antiwar Radio.
I'm Scott Horton and our next guest on the show today is Marcy Wheeler, aka Empty Wheel.
Find her great blog at emptywheel.net.
She's a lawyer, understands legalities of a lot of complicated things and explains them very well, and thank goodness for that.
I rely on her very often, including in the case of the FBI's, at least as far as we know, pseudo-investigation, threat assessment of antiwar.com.
Welcome back to the show, Marcy.
How are you doing?
I'm good.
How are you?
I'm doing great.
Appreciate you joining us today.
So a few articles, well, blog entries/articles in question on the show today at emptywheel.net are the gang of four doesn't have access to the kill list.
Can't wait to talk about that here in a minute.
Cheney, al-Awlaki killing violated American principles of justice, just like torture program did.
I played the clip for y'all on the show yesterday.
And Anwar al-Awlaki assassination, double secret illegitimacy.
And then maybe if we have time, I want to ask you about this great piece on Abdulmutallab, the underbomber as well.
But let's start with Dick Cheney on the Sunday morning news show and what was learned from his candor this weekend?
Yeah.
You know, he basically, he didn't say exactly, well, the killing of al-Awlaki was just as illegal as all my torture.
But he, in asking for an apology from Obama, he basically rationalized asking for the apology by basically suggesting that the killing of al-Awlaki was just like his torture program.
And I think it's safe for us to then read into that, that he's arguing that it follows the same principle of lack of rule of law.
So, you know, I sort of thought of that and I'm like, you know, if I were Michelle Obama, I would go to my husband and say, dear, when somebody says, when Dick Cheney says that you're as bad as he is, you got problems.
Right.
Dick Cheney thinks he's citing this as a measure of his own legitimacy.
And all he's doing is indicting the sitting president of the United States.
Yep.
And he's right, isn't he?
The power he claimed to kidnap and torture Jose Padilla, an American citizen, in his case, arrested on American soil.
But I don't think legally that really makes any difference, does it?
Is the same power that Obama exercised in killing Anwar al-Awlaki, which is post-constitutional imperial power without limit, plenary power, as they called it in the Addington years?
Yeah, I mean, in both cases, when they were asked to show a judge what their basis for making these decisions were, they tried to get out of doing that.
In Padilla's case, they moved him to military prison for a bunch of years, and only when they found a piece of paper they could charge him with, you know, years and years later, did they move him back to the civilian legal system.
And in Awlaki's case, the ACLU and Center for Constitutional Rights had sued to find out what kind of basis they were using to make these killist decisions, and the government declared that a state secret.
Yeah.
Well, and you know what?
Correct me if I'm wrong, but on that decision, they mostly relied on the father standing to sue in this situation.
And I wonder whether you could comment on that specifically, whether that was even legitimate at all, the way they that?
Well, no, I think it was, I think it was, it was unsurprising.
The judge in that case, it's the same one who ruled in the Valerie Plame lawsuit against Dick Cheney.
And his ruling, you know, as soon as it was assigned to him, I said, you know, he's going to kick this out on standing ground, because he does that.
He's done that a number of cases.
He's very uncomfortable impinging on, on the political branches.
So on, on, on something that might be construed as the president's power.
So as soon as it got assigned to Judge Bates, I was, I was sure that was going to be how it worked out.
But along the way, I mean, what the government did is admit all of the state secrets documents, claiming that they had used their state secrets process to, to do so, and then say, you know, please don't use the state secrets doctrine, if you can kick out the case on something else, which is what they eventually did.
But, but I don't see how they now say how they now can say, Oh, sorry, we didn't mean that it was a state secret.
Sorry, that John Brennan is saying, you know, is saying everything that was in that state secret declaration on the record to journalists.
I mean, you know, they ought to be prosecuting John Brennan for the kind of leaks that they prosecute whistleblowers for because his government has certified that all the stuff he's saying on and off the record to journalists is a state secret.
Well, you know, it's kind of like the empire laid bare in Bahrain.
It's the lack of law in this country laid bare at this point, where so many different war crimes, technically, and, you know, morally, are taking place and such abuses.
I mean, George Bush Jr. came out and gave a press conference, basically, I'm summarizing paraphrasing, he said, Yeah, I violated the felony FISA statute millions of times, what are you going to do about it?
And that was years ago.
And this still just goes on and on and on.
At this point, it makes one wonder how long they're even going to continue pretending we have a rule of law at all.
Why hold elections at all?
Why?
You know what I mean?
At this point?
Yeah, it's funny.
The Republicans are trying to start an investigation on Eric Holder, alleging that he lied to Congress on a fast and furious ETF program.
And I was laughing, I was like, you know, doesn't Congress know that they've that the administration will not prosecute, will not investigate executive branch people who lie to Congress?
I mean, they've basically taken that law as well.
Right?
Right.
Yeah, it's their own idea.
They don't even know it.
Right.
I mean, it's that, well, you know, that Congress has gone for so long refusing to exercise any oversight of the of any administration that, you know, when they do, it's kind of farcical.
But now you've already set the precedent of letting the president get away with whatever he wants to do.
Yeah.
Well, and, you know, we've already seen from Gary Johnson and from Jane Harmon, this kind of dialectic where, well, maybe it's okay that he murdered this American citizen without any process, but at least they ought to release the memo and be a little bit more transparent about the process inside the executive branch, wherein they decided to assassinate this guy.
I'm actually glad that Harmon called for that.
This is after, of course, she said that it was, quote, tricky because he's an American citizen, which I thought was was sort of cute, because a lot of people aren't calling for that kind of transparency.
And it's really troubling to me that that that they're not worried about this, that they're not bugged that the president is saying, I can kill anybody and I don't have to show you why.
Right.
Well, I guess really the difference in my point of view is, yeah, give us that memo so we can indict you with it and and use it against you in court or something instead of not that that could happen.
But instead of that would kind of ameliorate the thing that, you know, if at least they were a little bit more transparent about what they knew, because they claim to know all these operational things about this guy Al-Aqi that have never been proven to the public at all.
Right.
And that's the thing.
I mean, the memo by itself presumably would have evidence about Al-Aqi that they would have to show the the operational ties that they have claimed.
And they would also have to they would have to describe what kind of relationship they're working under with Yemen, because the argument they're making about it being legal is also premised on whether or not Yemen has the ability to arrest Al-Aqi or to get Al-Aqi themselves.
But, you know, you and I know this, like they're saying, OK, we've got proof that he's an operative.
Where did that proof come from?
It came from the same people who gave us, quote unquote, proof that Iraq had WMD.
Right.
Right.
Yeah.
I mean, and they're asking us to trust them.
It's just like people.
It works so well.
It still works.
It worked in the very same way, especially with the partisans of each side.
The mantra that, well, they must know secret things that we don't know about, but I trust my president.
You know, it just depends on who's saying that about which president.
But same difference.
Yeah.
And it's the Iraq war over again.
It's a process.
Oh, OK.
You know, we'll not only trust that what you're implying to us is true and has sufficient detail to back it up, but we'll trust that the collection of it is above board.
We'll trust that it makes sense.
We'll trust that the evidence was not, you know, we'll trust that we don't you could argue and I'm not making this argument, but you could argue that President Saleh of Yemen has an interest in having us do this on his soil.
And, you know, it did the did the intelligence come from him?
Because if it did, then then somebody needs to push back and say, well, why should we trust him?
Right.
He's been shining his arm to shoot down his own people.
All right.
Hold it right there.
We'll be right back.
Empty wheel dot net.
Yeah.
Oh, man.
Barack Obama fans have a moral crisis to face today.
Michael Savage is officially on the record declaring no way the Fifth Amendment rules and presidents can't murder Americans.
It's a crime.
How do you like that?
Are you Obama fans out there worse than Michael Savage on this issue?
If so, you might want to reconsider your position.
All right.
I'm on the line with Empty Wheel, Marcy Wheeler.
Empty wheel dot net is her great blog address.
And we're talking about this presidential hit on Anwar al-Awlaki and what's supposed to be the law in America and the law that governs America's government itself.
And now you were talking about how they say that they have all this evidence against al-Awlaki.
They haven't released it to any of us.
If it exists at all, it very well could have come from the dictator Saleh, this brutal dictator, speaking of savages in in Yemen.
And I think it's a fair question, Marcy, whether they have any evidence at all, because after all, didn't they try to indict Anwar al-Awlaki before?
Didn't they convene a grand jury on him?
And didn't the Patriot Act give the intelligence agencies all the authority they need to pass everything they know to the federal prosecutors and the FBI in a situation like that, a secret grand jury proceeding?
And they no-billed him, or at least they closed the thing down without an indictment.
Yeah, but that was years ago.
I mean, I do think the administration has argued that they got new information basically in the last year and a half, and particularly when they captured the underwear bomber, Umar Farouk Abd al-Muttalib.
And so following the Nidal Hassan killing, they started looking more closely at his emails when they captured Abd al-Muttalib.
And here's another interesting point.
He is alleged to have testified that Abd al-Muttalib had an operational role with ordering him not to set off his bomb until he was over U.S. airspace.
However...
Al-Awlaki told him that.
Yeah, however...
Or they say he says that.
Yeah, they say Abd al-Muttalib said that al-Awlaki said to Abd al-Muttalib not to let off his bomb until he was over the airspace in Detroit.
But what's interesting is one of the things that came out in Abd al-Muttalib's case is that there's actually a dispute between the government and Abd al-Muttalib over how much he was drugged when he said this.
So, in other words, they interviewed him twice after this happened.
One was immediately when they arrested him.
The second one was when he was in the hospital being treated for third-degree burns.
And at that point, he tried to get some of that testimony excluded from the trial because he'd been all drugged up.
And there's this dispute about it.
And I don't know who's right about that dispute, and that we may learn this week because Abd al-Muttalib's trial started today.
But the point is that's the kind of thing that an al-Awlaki lawyer would have been able to challenge.
He would have said, you know, you can't trust this testimony because it came from somebody that you had on drugs.
And so he was disoriented, and so he didn't mean to say what exactly he did say.
You know, I'm not saying that that's the case.
I'm not saying that that's right.
But I'm saying that's why we have a court system.
Right.
The point is, yeah, what may or may not be good enough to prosecute someone in court with is certainly good enough to give somebody the death penalty when you call it intel.
And it's a foreign policy operation.
Right.
Right.
And then, you know, some of the intelligence that we got, some of the other intelligence we got on al-Awlaki is on, and I'm forgetting his name, but it came from a Saudi who had been in Gitmo.
We presumably recruited him to spy for us while he was in Gitmo or while he was in his retraining program in Saudi Arabia.
He goes to Yemen.
He comes back and tips off about the toner cartridge plot.
But again, I mean, are we are we killing American citizens based on the word of somebody who's been trained to be a double agent while he was illegally imprisoned in Gitmo?
Yeah.
Thank you for reminding me about that.
There was something even more complicated about that story, but I forget exactly how it went now.
Well, I mean, a lot of that story, I think, never got reported, but it was pretty obvious he was he was you know, we had recruited him to go into into into Yemen to spy for us and then came back.
And that's what that's what triggered that story.
But of course, nobody is going to tell us that.
And nobody, you know, but again, that's something that that would be relevant if al-Awlaki had had a chance to challenge his execution in court.
Well, this may have been, I guess, you know, a year ago, June or something like that, after Mullen made his statement that, yes, this American citizen is on our hit list to the U.S. Senate.
There was a piece in The Washington Post where it was anonymous officials saying that they believe he may have ties to terrorism.
That was how they that was how strongly they were willing to put it anonymously in The Washington Post.
And that was enough for their death sentence then.
So I don't know what they found out since then, but I guess it would be sort of beside the point.
Right, right.
I mean, they, you know, they claim that they have this information.
And then the one other piece of information they have is emails with a I think he's been convicted terrorist in London about plans.
And again, I don't know the veracity of that.
It's just, you know, for all of these things in court, American citizens get to look at the trustworthiness of evidence against you.
But as you said, when they call it intelligence, then all of a sudden you don't get to look at it.
Right.
And, you know, we talked with Lou Rockwell on the show about this the other day, and he talked about how one out of two hundred and twelve people prosecuted in federal court ever get off that everybody's charged so many things that they have to plead guilty.
And then the government can break the plea deal anytime they want, however they want.
People go to prison for years.
Nobody wins in federal court.
No one.
It might as well be Gitmo.
I mean, really, I mean, isn't that right?
And that what somebody is up against if they're prosecuted in federal court, they got the U.S. empire on one side and their trusty lawyer on the other.
It really is no match at all.
Well, especially in a terrorism trial, because thus far, jurors are pretty credulous about what they do.
I mean, even on these, you know, these entrapment cases where the FBI basically teaches a guy how to be a terrorist and then arrests him for it.
Those all have been successfully prosecuted as well.
And so juries just are very credulous when the government tells them that somebody is a terrorist.
So that hopefully will change when more and more Americans get, you know, when blonde people start being called a terrorist.
But one of the parallels that I think is really interesting about this case is there's a right wing blogger, Hal Turner, who has been indicted twice for basically inciting violence against officials, against judges and other elected officials.
He had a mistrial a bunch of times and actually was indicted on the first case.
And then on the second case, he was acquitted.
And what's interesting about that is Hal Turner was basically doing what we know al-Aqibs have done, which is write violent things.
And he was acquitted one of the two times when he was tried in a federal court.
And that's sort of the point.
You know, I don't I don't like Hal Turner.
I don't like what he says.
But we protect free speech in this country, even if it is violent, loathsome free speech.
And in that case, that was a guy who got off in federal court.
Although in that case, FBI was paying him to say those things in the first place, right?
Right.
Yeah.
I mean, this goes back to for years he was doing that at the behest of the FBI.
And then he kind of he kind of broke ties with the FBI and continued doing what he had been doing.
And all of a sudden they indict him for it.
So who's the new you?
And I don't mean you empty wheel.
I mean, who's the new John you up in the office of legal counsel and in the rest of these positions where these guys are writing these memos telling Barack Obama that he's George Bush and he can do whatever he wants?
Well, we'll see what he will see what happens when the opinion comes out.
Because if you remember, the Libyan war, the illegal Libyan war, he had an I'm forgetting this woman's name.
He had one, an LLC lawyer, write an initial and it was a weird memo.
And it was sort of like everything you've done for the last six weeks is okay.
But it was clear when she wrote that memo that there was a that that okay was going to expire at some point.
When that okay expired.
He beat Obama basically overrode her advice, which was it's not legal to stay in Libya anymore.
You violated the terms of the War Powers Act.
And so you know, they're like, it's not just that there's a john you in OLC, writing things that are just as ridiculous as john you.
But it's also that Obama overrode the decision of the OLC.
And at least one case, Obama is john you.
Well, we're back to where we were with Dick Cheney saying that Obama's as bad as he is, right?
Right?
Well, there you have it.
I met a guy the other day.
I said, No, I don't care.
Every decision the guy's made for three years.
It's all George Bush's fault.
I just don't want to hear.
All right.
Well, and so it goes.
Thank you so much for your time on the show today.
Always really appreciate it.
Marcy.
All right.
Take care, Scott.
Thanks.
Marcy Wheeler, everybody.
Empty wheel.
Find her great blog at empty wheel dot net.
